构建我国行政公益诉讼的几点思考

我国《行政诉讼法》规定,公民、法人、其他组织认为行政机关及其工作人员的具体行政行为侵犯了其合法权益,有权向人民法院提起诉讼。可是,《行政诉讼法》却没有提供当行政机关的行政行为导致公共利益受损时的合理救济途径。本文在对行政公益诉讼制度作了简要介绍的基础上,提出了在我国构建行政公益诉讼制度的几点思考。     

Alexy on Necessity in Law and Morals*

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.     

Hart's Jurisprodence: Its relation to Philosophy

The essay concerns the way jurisprudence adapts to the challanges set by contemporary philosophy concentarting upon the case of Hart"s legal theory. Hart produced one paradigm of linking philosphical considerations to jurisprudential analyses. He seemed to believe that the investigation of legal phenomena must itself raise and answer the underlying philosophical questions (only occasionally relying on philosophical sources). Although Hart was well aware of the rising new philosophy of his time, he sought to elaborate an autonomus conceptual framework for philosophical jurisprudence. The essay often takes Wittgenstein as an example for elucaidating Hart"s relation to philosophy (although critizing those who believe that Hart"s is a key figure in the jurisprudential reception of Wittgenstein"s later philosophy). The essayjustifies Hart"s claim to gain theoretical autonomy but points to three mistakes in that prespect. (1) He sometimes misconcieved his philodophical sources owing to the fact that he refrained from analyzing them. (2) Hart justified some of his crucial claims by a combination of arguments that is not entirely consistent. (3) His standpoint often raised philosophical issues but sometimes failed to make an identifiable point upon them. The essay concludes that Hart was right in thinking that the time had come to reconsider the conditions of making theories about law but he couild not justify his assumption that the reconsideration would lead to certain kind of comprehensive theory of law.     

A dilemma for feudal China: To launch a copyright scheme in the late 19<Superscript>th</Superscript> century

Based on copyright law and its jurisprudential basis in the late 19^th century of China, this article is focused on the external conditions affecting or restricting the formation and development of copyright law during this period, and also reviews the tortuous process of copyright law and theories in China, and explores the underlying influences of Chinese traditional culture and other elements. Furthermore, it analyses the significant influences of western copyright concepts on the practical development of Chinese copyright protection system. Last but not least, it argues the fundamental barriers to the development of copyright law in China resulting from the persistent gap between the notions that forced upon the legal system and those embodied in social axiology, and the conflicts and tensions induced have affected both the law making and enforcement in copyright.     

Stephen Martin Leake: A Victorian's View of the Common Law

This article considers the life and work of Stephen Martin Leake and seeks to locate his work within the wider context of the procedural and substantive transformation of the mid-to-late Victorian legal world. In particular, the article attempts to rescue Leake from obscurity and emphasise his importance in this process. It is argued that Leake's work began the process whereby common lawyers conceived of their law as organised in a principled rather than procedural manner. Later common law jurists built upon this work. Consideration is also given to the philosophical and jurisprudential sources upon which Leake drew in constructing his treatises.     

清官论考

本文从清官的内涵、清官的特点、清官产生的社会历史背景、清官的历史作用以及清官的精神等五个方面,对清官这一中国传统政治法律文化中的重大课题进行了系统的研究。通过对史实的考察,试图说明:为了建设社会主义法治国家,在尊重法律、强调民主、追求自由与平等、维护社会的公平正义等的同时,政府官员在政治、经济乃至个人生活上必须弘扬中国古代的清官精神。     

Jeremy Bentham and Equity: The Court of Chancery,Lord Eldon,and the Dispatch Court Plan

In 1929 Sir William Holdsworth argued that Jeremy Bentham wrote ‘the best criticism’ of Lord Mansfield’s attempts to ‘fuse’ law and equity that has ever been made. As the present article will show, Bentham was in fact in favour of a form of ‘fusion’ that consisted of the abolition of the procedural distinction between law and equity, the incorporation of the subject-matters ordinarily handled by equity courts into his Civil Code, and the inclusion of formal mechanisms to provide relief and to amend the law in his ideal constitution. In the immediate term, Bentham devised a series of ‘equity dispatch courts’ that would employ a summary method of procedure in order to clear the large backlog of Lord Eldon’s court of chancery. While he claimed that this project would be experimental and temporary, he often portrayed it as an avenue through which to instigate radical reform, and to eliminate entirely the need for separate systems of law and equity. However, it will be concluded that, with the exception of Henry Bickersteth, Bentham’s writings on equity gained little influence in the decades preceding the Supreme Court of Judicature Acts (1873–75), and achieved only a small circulation.     

Legal education in Nigeria: an evaluation of the recruitment practice for the teaching of law as a career

This article makes a critical assessment of legal education in Nigeria, focusing on the standard of hiring for the teaching of law as a career in the country. Legal academics are hired based upon an accreditation standard that requires a vocational qualification determined through a call to the Nigerian Bar. The article argues that making a vocational qualification a criterion for academic appointment – apart from other achievements demonstrated through higher law degrees – inhibits innovation in teaching and learning and needs to change. This change is premised on three reasons: the growth of interdisciplinary legal scholarship; the trend in the legal marketplace; and the correlation between a law faculty and a department of religion. And it concludes with some proposals to think about for a more scholarly approach towards the teaching of law within Nigerian academia. The aim of this article is to inform the essential dichotomy between legal scholarship and practice, and the transnational aspirations of legal academics, for those involved in the development of law teaching and study, as well as those concerned with educational policy and administration around the world.     

In courtroom 7--the Children's Koori Court at work: findings from an evaluation

This article reports some of the findings of an evaluation of the Children's Koori Court (CKC)--the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal-fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC's design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited.     

King Charls His Case: The Intended Prosecution of Charles I

Charles I was put to death without having pleaded to the charges preferred against him during his trial. This article examines the case that his prosecutor later said he would have opened, had the king entered a plea. John Cook's case was predictably forthright in its denunciation of the accused. On the other hand, it has some highly significant omissions; some of it was legally and factually hopeless, and much of the rest invited fairly obvious responses; whilst its exposition was much more contentious than one might expect from a case for the prosecution of a man whose guilt had already been pronounced ‘notorious’. Rather than simply setting out a wholly unsatisfactory indictment of the king's alleged ‘guilt’, as a mere prelude to the shedding of his blood, Cook's true aim appears to have been to goad the king into making, before the eyes of the watching world, a case in his own defence sufficient to enable the king's judges, having heard what he might have to say, and subject to ‘the merit of the Cause’, to hand down some sentence other than death - all as the Act erecting the high court of justice authorized them to do.     

Framework for Analysis of Legal Mobilization: A Decision-Making Model

The American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law on his or her own behalf Without discounting the contribution to our understanding of legal mobilization which has been made by the access-to-justice movement, the author argues that focusing on the poor and the distribution of legal services has limited our understanding of the legal system.
The article presents an alternative analytic framework for examination of citizen use of the law. The model of legal mobilization presented focuses on demands rather than needs, on citizens rather than lawyers or judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawing on the literature and available empirical evidence, the author attempts to analytically clarify the complex process of legal mobilization by organizing relevant variables into a decision-making model that focuses on the individual actor and the factors weighed in deciding whether and how to proceed in mobilizing the law.     

Through the Back Door: Applying Theories of Legal Compliance to Illegal Immigration During the Chinese Exclusion Era

This article applies theories of legal compliance to analyze the making of this country's first “illegal immigrants”—Chinese laborers who crossed the U.S.‐Canadian and U.S.‐Mexican borders in defiance of the Chinese exclusion laws (1882–1943). Drawing upon a variety of sources, including unpublished government records, I explore the ways in which Chinese laborers gained surreptitious entry into the United States during this period and ask, what explains their mass noncompliance? I suggest that while an instrumental perspective is useful for understanding these border crossings, it overlooks other important determinants of noncompliance: normative values and opportunity structures. Specifically, the exclusion laws were widely perceived by the Chinese as lacking social and moral legitimacy, and thus not worthy of obedience. In addition, the existence of smuggling networks and liberal immigration policies in Canada and Mexico played a critical role in facilitating noncompliance. The article concludes with a discussion about the benefits and challenges of using this theoretical framework to analyze noncompliance in immigration law.     

萧公权的宪政观——《宪政与民主》评述

萧公权先生写于民国年间的诸多政论,于宪政四要素法治、自由、民主、分权中更为青睐民主与法治,主张民治为体,法治为用。萧氏晚年愈加趋向保守,若以对待传统、历史进步论以及宪政建构的路径依赖为区分,其可谓一个中国特色的古典宪政主义者。     

The doctrine of informed consent: a tale of two cultures and two legal traditions

In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patients "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.     

员工竞业禁止研究

员工竞业禁止之理伦基础是普通法上雇员之默示义务及现代产业扩张、产业竞争压力增大而形成的客观环境。员工在职竞业禁止在普通法系中表现为雇用期间之约定俗成,即雇主忠心事主是其义不容辞的默示义务;员工离职竞业禁止制度的设计,需权衡用人单位利益与劳动者就业权之间的冲突。     

Legal pragmatism and the pre-birth continuum: an absence of unifying principle

The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.     

论虚拟财产刑事保护的正当性——与侯国云教授商榷

侯国云教授的《论网络虚拟财产刑事保护的不当性——让虚拟财产永远待在虚拟世界》一文,提出了虚拟财产的刑事保护不具有正当性的观点。该文对虚拟财产的特性没有准确地予以理解和把握;否认虚拟财产的财产属性,是缺乏理论依据的;否认虚拟财产的价值属性,是缺乏理论支撑的;虚拟财产与真实财产的交易违背价值规律和价值交换规则的说法,于理不通;虚拟财产与真实财产的交易是严重干扰金融秩序的违法行为的说法,于法无据;保护虚拟财产会给社会带来极大危害的说法,于理有悖;让虚拟财产永远待在虚拟空间,不是科学的做法。对虚拟财产的刑事保护具有正当性。对盗窃、诈骗虚拟财产的行为人,构成犯罪的,应依照侵犯财产罪的相关罪名追究刑事责任。     

The Poet and the Poor Law. Reflections Upon John Clare's ``The Parish'

This article argues that the work of the hedgerow poet John Clare is invaluable for legal social history in illuminating the reality of the operation of the poor law as it affected the lives of the poor. Clare's poem,The Parish, written between 1823–6 was not published during the author's lifetime. Written as he first achieved fame, it consists of 2,202 lines of satire denouncing the cant and hypocrisy he himself had witnessed and experienced in local village life. His Parish was his settlement parish where he and his parents were subject to the power of the vestry and local officials. This piece considers the text within the context of the legal history of the poor law. The value ofThe Parish as a primary source for that legal history is not merely in the simple narrative of biographical events allied to the poet's words, evocative as they are. It lies in the subtleties of Clare's own ambiguity about being poor and in the way those ambiguities assist us today both in understanding Clare's times and values and in hearing Clare mediating the universal experience of poverty through his art. This revised version was published online in August 2006 with corrections to the Cover Date.     

To Live Outside the Law: Frank O'Hara

This essay reflects on the New York School poet Frank O'Hara in terms of the idea of law. I suggest that art depends on a notion of an immanent law: that for language to become artistic is to become a meaningful part of an order which announces its autonomy from the surrounding world. O'Hara exploits this fact by making the most unlikely pieces of language into poetry, and thus giving the law to the life from which his words are taken. But he is also constantly improvising his own rules of art, drawing the law of poetry from the whim of the moment in radically individualist fashion. The gamble of O'Hara's writing is that the reader will submit to this profoundly personal law for the duration of a poem. This revised version was published online in August 2006 with corrections to the Cover Date.     

The Rule of Law and EU Expansion

The article seeks to further discussion about the European Union's identification of the rule of law as a fundamental principle and pre-requisite for EU membership by prospective member states, despite the lack of a uniform Community-wide understanding of this concept. In this article, three points will be explored. Firstly, it will briefly examine the rule of law principle within the EU, as a contested concept, despite its pre-eminence as a fundamental principle upon which EU membership is based. Because of its contested nature, there exists across the EU, conceptual variations, leading to the problem of an apparent absence of a uniform conception of the rule of law. Secondly, the article will identify some of the main conflicts between the EU making this rule of law a pre-requisite for membership and the lack of a uniform conception for this fundamental principle. Thirdly, the article explores how these conflicts affect the development of legal cultures of prospective member states and what potential problems these conflicts imply. The article focuses on the European Union's lack of a uniform understanding of the rule of law and how this affects prospective member states from Central and Eastern Europe. This revised version was published online in August 2006 with corrections to the Cover Date.